Sunday, March 28, 2004

Remember when talk of a “gay marriage” evoked images of old-time movie stars William Powell and Myrna Loy romping through another Nick-and-Nora Charles mystery with their little dog Asta happily yapping along?

If so, you’re way behind the weird times. In this 21st and quite confused century, maybe it will be necessary to tinker with the law of the land to spell out what was once simply understood: Marriage is a union between man and woman — one man and one woman, it is now necessary to add.

But why amend the Constitution right now? That’s the legal equivalent of going nuclear. Why not let the issue wend its deliberate way through the courts first? Maybe reason and reverence will yet come to the fore, and a solemn constitutional amendment may not be necessary.

This dust-up all began when a state supreme court in Massachusetts, or at least four-sevenths of it, stretched the Equal Protection principle beyond credulity, common sense and meaning in general.

The result, at least in Massachusetts, is marriage is no longer to be considered a holy estate to be entered into “reverently, discreetly, advisedly, soberly, and in the fear of God,” to use the quaint language of the Book of Common Prayer.

Instead, those four judges in the majority ruled getting married is more like applying for a driver’s license — only without any test. And because anyone may apply, the court concluded, the state may not discriminate against homosexuals who want to marry each other.

The next question is whether all the other states are obliged to give the Bay State’s new form of marriage Full Faith and Credit, to quote the constitutional formula.

Not even the federal Defense of Marriage Act, we’re warned, will be enough to save the old meaning of holy wedlock. Hence the rush to amend the Constitution of the United States — even before the courts have decided whether all the states have to recognize Massachusetts’ novel definition of marriage.

Who knows, by the time the courts have their say, the people of Massachusetts themselves might amend their state constitution, overruling their supreme court and saving us all a lot of trouble. That’s what the people of Hawaii did after homosexual marriages were briefly ruled legal there.

Some of us regard the U.S. Constitution as a kind of sacred covenant itself, and believe any changes to it should be made only reverently, discreetly, advisedly, soberly and, yes, in fear and awe. That is why we would rather wait and see whether a constitutional amendment is necessary before adopting one.

The first rule in these matters should be the same one Hippocrates proposed in his famous oath for physicians — do no harm. To federalize the question, and deny each state its own marriage laws, would do considerable harm to the basic, federalist principle that informs the whole Constitution.

So long as Massachusetts does not force the rest of us to go along with its supreme court, surely the country can abide this exercise of states’ rights, or even of a state’s wrongs.

The notion of a right to marry — whether someone of the same sex, or several persons of the opposite sex, or one’s own brother or sister or father or mother, or even a pet (poor Asta) — is quite an advanced idea, all right. Advanced beyond all reason, let alone custom, tradition and the dictionary.

But before rushing to amend our federal and state constitutions, let’s ascertain what the law really is — through the usual, deliberate judicial process. If to wed in haste is to repent at leisure, changing the Constitution of the United States may invite the same remorse.

Some states might follow Massachusetts’ example, while others would deny homosexual unions any recognition. Still others might offer their citizens some form of domestic partnership or civil unions. Not just homosexuals need apply.

A civil union might be just the thing for elderly sisters who live together, or old friends who want to share their financial obligations and benefits. In our zeal to protect marriage, why rule out that sensible compromise? Which is what an ill-worded constitutional amendment might do.

A number of states have already amended their constitutions to preserve the traditional definition of marriage. Here’s hoping this rush to judgment, and to constitutional amendments, will prove only a passing fad. Because right now it’s a toss-up which is more ill-advised: Massachusetts’ court-ordered change in the law, or the rest of the country’s too-hasty reaction to it.

Paul Greenberg is a nationally syndicated columnist.

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